Plaintiff v Defendant

2 The defendant, VicForests, is established under the State Owned Enterprises Act 1992 whose functions include sustainably harvesting and selling timber in Victorian State forests on behalf of the Victorian Government.

3 Kinglake alleges that VicForests has engaged in timber harvesting in contravention of applicable Management Standards and in breach of s 46(a) of the Sustainable Forests (Timber) Act 2004. It seeks orders restraining VicForests from carrying out clearfall or seed tree timber harvesting operations in coupes in areas, which it describes as 'Bushfire Moderation Zones' 1 to 7. The coupes appear to be located in areas including Mt Disappointment, Taggerty, Kinglake, Powelltown, Toolangi, Flowerdale, Tallarook and Narbethong.

4 The plaintiff's case is that in a number of Bushfire Management Zones, VicForests has unlawfully exceeded its one per cent limit, and because cl 5.8.1.5(a) of the Management Standards restricts harvesting over 'any five year period', no further harvesting can occur in these Bushfire Management Zones for the remainder of the relevant five year periods.

5 Section 46 requires that logging must be conducted in compliance with any relevant Code of Practice, which in this case is the Code of Practice for Timber Production 2014 ('the Code') and the incorporated Management Standards and Procedures for timber harvesting operations in Victoria's State forests 2014 ('Management Standards'). The Code describes the four Fire Management Zones ('FMZ'), for instance the Bushfire Moderation Zone is described as follows:

This zone aims to reduce the speed and intensity of bushfires. This zone complements the APZ in that the use of planned burning in the BMZ is designed to protect nearby assets, particularly from ember spotting during a bushfire.

Where practicable, the BMZ will aim to achieve ecological outcomes by seeking to manage for ecologically desirable fire regimes, provided bushfire protection objectives can still be met. This may include using other fuel management methods.[1]

6 Clause 5.8.1.5(a) of the Management Standards provides that:

In Bushfire Management Zones defined in the [Bushfire Code]: ... in any five year period the harvested area using clearfall or seed tree harvesting must not exceed 1% of the GMZ or SMZ in that Bushfire Management Zone measured as a rolling average from 1 July 2012.[2]

Failure to comply with clauses 5.8.1.3 through to 5.8.1.6 may result in DEPI undertaking planned burning in the coupe. Where this occurs, the harvesting entity is responsible for ensuring regeneration standards are met post planned burning.[3]

7 The term 'Bushfire Management Zones' is not defined in the Code. Rather, it refers to Bushfire Moderation Zones.[4]

8 In documents relevant to this proceeding, reference is made to various 'zones'. Including, Fire Management Zones ('FMZ'), Bushfire Moderation Zones ('BMZ') General Management Zones ('GMZ'), Special Management Zones ('SMZ') and Special Protection Zones ('SPZ').

9 Kinglake's case is that VicForests has been harvesting timber in particular coupes in excess of one per cent calculated as a rolling average over five years and therefore has been harvesting timber contrary to law. Kinglake seeks an interlocutory injunction restraining VicForests from conducting timber harvesting in particular coupes.

10 The case came before me in the Practice Court in November for an urgent hearing for an interim injunction pending trial. The defendant gave an undertaking not to harvest timber in particular coupes until further order without first giving 21 days' notice.

11 At their request, the parties were given an expedited trial listed on 9 and 10 December 2020. But, the plaintiff was not ready to proceed, in part at least, because of the service of a defendant's affidavit on it shortly before the hearing. The defendant was ready to proceed and protested any further delay in the proceeding. But because of the service of further affidavits and the desire to seek further documents, the trial was therefore adjourned to February 2021. I proceeded to hear a summons filed by Kinglake, again seeking an interlocutory injunction to prevent VicForests from conducting any timber harvesting in a number of coupes, which are scheduled to be harvested in 2021, pending final hearing of the proceeding in dispute. Only four coupes remained in contention, a number of others were subject to the undertaking given on 10 November 2020. The four still in contention are Anchovy, Glendale East, Neils Flower and Boys Camp.[5]

12 I should make very clear at this point that, as I am to hear the trial of this proceeding, any conclusion I express in this judgment is provisional and only expressed for the purposes of determining whether to grant an interlocutory injunction. I have not formed a final view on any issue and cannot do that until I hear and assess all the evidence and submissions at trial.

13 The standing of Kinglake to bring this proceeding is in issue. Kinglake submitted that it does have the standing necessary because it engages in a wide range of activities advocating for the protection of the native forests in the Central Highlands. It argued that those activities establish that it has a 'special interest' in the subject matter of the litigation that entitles it to sue in order to uphold a public right.[6] Kinglake's affidavits include some evidence of the following. That it provides a forum for people to advocate for the preservation of the native forests in Kinglake and the Central Highlands. That it does this by organizing events, arranging tours for parliamentarians to promote the cause of protecting the Central Highlands state forests from logging, boosting media coverage of that issue, maintaining a presence on Facebook, carrying out surveys on its own and with other environmental groups of flora and fauna to assist in advocating for their preservation from logging, making submissions about logging in the Central Highlands to government, supervisory bodies and VicForests, obtaining expert reports, making reports to the Department and the Office of the Conservation Regulator about breaches of the laws protecting state forests, presenting petitions, filing submissions to an Inquiry into Environmental Infrastructure for Growing Populations and bringing court proceedings.

14 Kinglake relied on the decision in Environment East Gippsland v VicForests[7] in which J Forrest J found that the plaintiff had standing to bring the proceeding, despite the plaintiff not being a peak body and not having a close relationship to the Victorian State Government in terms of giving advice or providing funding.

15 Kinglake also relied on the recent decision in WOTCH Inc v VicForests (No 6) ('WOTCH'),[8] concerning whether WOTCH had standing to bring proceedings seeking the protection of species in the Central Highlands. Justice Keogh found that WOTCH did have standing in relation to forest-dwelling threatened species and their habitat in the Central Highlands, but outside that area only in respect of one species, but not in relation to other species. His Honour referred to various advocacy activities undertaken by WOTCH and stated:

These activities demonstrate the direct and immediate concern WOTCH has with the protection of forest-dwelling threatened species and the habitat of those species in the Central Highlands, and establish WOTCH's standing in that region in respect of the subject matter of the proceeding.[9]

16 To the contrary, VicForests submitted that Kinglake did not have standing to bring the proceeding. It relied on the High Court's decision in Australian Conservation Foundation Inc v Commonwealth[10] and the recent Court of Appeal decision in Maguire v Parks Victoria ('Maguire ').[11] Counsel referred to the following passages in Maguire:

In considering whether a plaintiff has standing to challenge the exercise of a statutory power, it is important to examine the statutory context to assess whether and to what extent the interests of the plaintiff are accommodated in a way that might support standing.

...

A plaintiff may have standing to challenge the exercise of power because of its practical or legal effect even though the interests of the plaintiff do not coincide with the purpose of the statutory scheme.

...

It follows that the applicant must establish that he has a special interest in the decision to cull the feral horses within the National Park rather than a more diffuse interest in brumbies or in ensuring compliance with the law. He says that he has that status and is entitled to enforce cl 6.1 of the Statement of Obligations.[12]

17 VicForests argued that Kinglake has no greater interest in the subject matter of the litigation than any other member of the public.[13]

18 The Court has a discretion whether to determine the question of standing immediately or to proceed to deal with the merits without first resolving the question of standing.[14]

19 Justice Richards has a reserved judgment on Kinglake's standing in another environmental law proceeding against VicForests. During the hearing, I decided that it was not appropriate to rule on the issue of Kinglake's standing in this proceeding as a preliminary issue. I considered that the Court should await Richards J's decision. But, for present purposes, I also consider that there is a serious question to be tried in relation to the issue of its standing. It is arguable that Kinglake's activities establish that it has a 'special interest' in the subject matter of this proceeding, which can be described as preventing harvesting of timber in coupes in the Central Highlands which is not permitted by law.

20 I do not consider that, in all the circumstances, it is appropriate to determine preliminary questions or issues about standing or otherwise in this proceeding.

Construction of cl 5.8.1.5(a) of the Management Standards

21 Kinglake next contended that there was a serious question to be tried about the meaning of cl 5.8.1.5(a) which I repeat:

In Bushfire Management Zones defined in the [Bushfire Code]: ... in any five year period the harvested area using clearfall or seed tree harvesting must not exceed 1% of the GMZ or SMZ in that Bushfire Management Zone measured as a rolling average from 1 July 2012.[15]

22 First, there is the issue of whether the reference to 'in any five year period the area harvested ... must not exceed 1% ... as a rolling average' should be interpreted to mean that over a five year period, one per cent can be harvested in total by VicForests or that a percentage up to five per cent may be harvested so long as that harvest does not exceed one per cent calculated as a rolling yearly average over five years.

23 Kinglake submitted that on its plain reading, cl 5.8.1.5(a) operates so that the total timber harvested in a five year period cannot not exceed one per cent of either the General Management Zone or the Special Management Zone.[16] The provision refers to 'any five year period'.[17]

24 VicForests submitted that a calculation of the timber harvested in the previous four years is made and it is necessary to ensure that the total of those four previous years plus the upcoming fifth year does not exceed one per cent. The annual average area of clearfall or seed tree harvesting in the BMZ Management Unit must be calculated, taken from a set of five consecutive years, comprising the preceding four years plus the forthcoming year. For the forthcoming year, that annual average area must not exceed one per cent of the area comprising the General Management Zone (GMZ) and Special Management Zone (SMZ) within that BMZ Management Unit. Over a five year period, the annual average needs to be less than one per cent; for example it could be no harvesting occurred in one year and two per cent the following year.[18]

Issue 2 - Is the word 'or' in cl 5.8.1.5(a) of the Management Standards conjunctive or disjunctive?

25 Secondly, there is an issue about whether the word 'or' in cl 5.8.1.5(a) is conjunctive or disjunctive. Kinglake's case is that the word is disjunctive and means that one per cent of either the GMZ or the SMZ can be harvested. VicForests submitted that the word 'or' should be read conjunctively to mean that one per cent of the GMZ and the SMZ can be harvested. On VicForests' construction, the total area capable of being harvested is larger given that it comprises the sum of both GMZs and SMZs.

26 VicForests submitted that its construction should be preferred as it imposes the least burdensome change in operation requirements when compared with the predecessor to the Management Standards.[19] Its construction was supported by the Minister's statement that 'the proposed [Timber Production Code] does not alter the regulatory burden imposed by the [previous framework] which will be revoked, but essentially only restates the regulation applying to timber production in a clearer format'.[20]

Issue 3 - Proper Construction of 'Bushfire Management Zone'

27 Thirdly, there was the issue of the meaning of the term 'Bushfire Management Zone' which appears in cl 5.8.1.5(a). Kinglake submitted that the inclusion of those words was a drafting error and must be read as 'Bushfire Moderation Zone' given that the term Bushfire Management Zone is not defined in the Code.[21]

28 VicForests agreed that the term 'Bushfire Management Zone' was not defined in the Code, but submitted that it is a different concept from a 'Bushfire Moderation Zone'.

29 In essence, it submitted that Bushfire Management Zones are a management or administrative unit within a broader Bushfire Moderation Zone that is used to manage compliance with the Code.

30 Given the interlocutory nature of the relief being sought, I will go no further than to say that the proper construction of cl 5.8.1.5(a) of the Management Standards is a serious question to be tried. I consider that Kinglake has established a serious case as to which of the two constructions of cl 5.8.1.5(a) is correct, whether it refers to one year or five, whether its reference to 'GMZ or SMZ' is disjunctive or conjunctive and as to the meaning of the term Bushfire Management Zone. In my opinion, Kinglake has established a serious question to be tried about whether VicForests has contravened cl 5.8.1.5(a). That question is about the correct construction of that provision about which a number of arguable issues of construction arise.

31 In reaching that conclusion, I have taken into account that VicForests' construction draws on the history of timber harvesting regulation and the development of the Code and not just on the plain words of cl 5.8.1.5(a). It also says that its construction has regard to 'practical considerations'. However, the fact that the construction issues require reference to extrinsic documents suggests that the meaning of cl 5.8.1.5(a) is arguable.

32 Kinglake submitted that the balance of convenience favours the grant of the interlocutory injunction to ensure that cl 5.8.1.5(a) is observed pending the determination of the proceeding. It said that it sought only the minimum restrictions necessary to protect the Bushfire Management Zones and that VicForests had not established that it would suffer any prejudice.[22] It submitted that the impact of excessive harvesting of the coupes would be irreversible and potentially catastrophic in terms of risks to life and property for areas in the vicinity of the overharvested FMZs.

33 In contrast, VicForests submitted that the harvesting regulations set out in the Management Standards were designed as an internal management mechanism between the Department and VicForests. Clause 5.8.1.2 demonstrated this intention, as the consequence of excess harvesting required the harvesting entity, VicForests, to ensure that regeneration standards were met at its cost.[23]

34 The balance of convenience did not favour interlocutory injunctive relief, as cl 5.8.1.2 already sets out the consequence of failure to comply with cls 5.8.1.3-6. If Kinglake's construction of cl 5.8.1.5(a) be correct, the only consequence will be that VicForests will be responsible for regeneration after planned burning in the relevant coupes.[24] It would be an 'unjust prejudice' for VicForests to be constrained through the summer harvesting period in these circumstances.[25]

35 The balance of convenience favours the grant of an interlocutory injunction. There are 11 coupes that Kinglake has identified as at immediate risk of being harvested and which it seeks to restrain VicForests from harvesting. Seven are subject to the undertaking of 10 November 2020 and Kinglake seeks an interlocutory injunction in respect of the other four. Although not necessarily in the same forest region, VicForests can harvest if it so chooses and provided it complies with the Management Standards. The trial is to occur in the second week of February. It may well be an issue whether if Kinglake's construction argument of the Management Standards is adopted, the consequence it only an internal matter between VicForests and the Department. The grant of an interlocutory injunction will preserve the state of the coupes in issue until the completion of the trial of the proceeding.

36 Subject to an undertaking as to damages, I will grant an interlocutory injunction until delivery of the judgment after the trial or further order from conducting any timber harvesting work in the four coupes identified by the Kinglake.

[1] Court Book, Kinglake Friends of the Forest Inc v VicForests (Supreme Court of Victoria, Ginnane J, 9 December 2020) 1539 ('CB').

[5] Transcript of Proceeding, Kinglake Friends of the Forest Inc v VicForests (Supreme Court of Victoria, Ginnane J, 9 December 2020) 92, 100 ('T').

[6] Citing Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 530-1 (Gibbs J), 539 (Stephen J), 547-8 (Mason J) ('ACF v Commonwealth').

[7] See Environment East Gippsland Inc v VicForests [2009] VSC 386, [70] (Forrest J).

[8] [2020] VSC 674 ('WOTCH').

[11] [2020] VSC 303, appeal dismissed Maguire v Parks Victoria [2020] VSCA 172.

[12] Maguire v Parks Victoria [2020] VSCA 172 [77], [80], [83].

[20] T 125; CB 1982.